Saturday, October 8, 2011

I’m having one of those days where my motivation has simply decided not to show up. There are a lot of little things that clue me in to days like this. Some of them, like checking Cracked.com over and over again on the basis that, “maybe this will be the day they post more than 3 new articles” are relatively benign. Others, like wading into Yahoo! Answers, are not. For those of you who aren’t familiar with Yahoo! Answers, imagine a place where people post questions and receive answers from the same sort of people who post comments on YouTube. If you’re in a mood for feeling better about yourself through schadenfreude, Yahoo! Answers is a good place to visit. Especially the area for legal questions. Doubly so if you have any familiarity with the law.

It’s also a passable last-ditch option if you’re really, really searching for anything to do that isn’t reading a casebook.

Yahoo! Answers is the last place on earth a person with any common sense would turn to for legitimate advice. It’s certainly not a source of advice for anyone connected with the legal profession. Which makes the question I saw earlier today a bit odd…

What case establishes (or alludes to) privacy as a fundamental right?

Looking for Supreme Court cases referring to privacy as a fundamental right, perhaps some applications in federal cases.
Also, if there are any compelling law review articles on this I wouldn’t mind reading them for a bit of background.

Thanks in advance.

At first blush, this seems like a rather intelligent question (by Yahoo! standards anyway). OK, so they have the novice assumption that the right to privacy came out of a single case rather than a gradual evolution starting with an 1890 law review article co-authored by Louis Brandeis, but that’s not bad for a lay person. I mean, the phrase “penumbral rights” really isn’t something that comes up in casual conversation; it’s understandable that someone outside of the field would be thinking in terms of a more generic answer. Louis Brandeis definitely doesn’t come up in popular culture (which is a damn shame, but that’s just my inner curmudgeon coming out again).

From there on out though, I start glitching. Applications in federal cases? OK, I suppose that someone outside the field wouldn’t really know that the vast majority of SCOTUS cases are “federal cases.” I mean, it sounds odd to me since, while it’s theoretically possible for the SCOTUS to hear a purely state law case on diversity grounds (or if the federal government is sued on the basis of state law), the SCOTUS almost never hears anything that doesn’t present a federal question, but a lay person might not know that. But why, I can’t help wondering, would a lay person be asking about application in federal cases? Beyond that, how many lay people even know to ask about law review articles, let alone actively want to read them?

Since the alternative was to go back to reading my IP casebook (or back to watching my Buckeyes fold like a cheap suit in the 4th quarter), I pondered this for a while. The acceptable grammar, clear formatting, and polite tone suggested that the question wasn’t from a high school student looking for homework help and the request for law review articles essentially clinched it for me; the number of high-schoolers who would know enough to ask about law review articles is just too small. A curious undergrad? Perhaps, but, again, the request for law review articles seemed to argue against it. Someone attempting a pro se case? Possible, but usually those people will include more information about their own case.

Then it hit me. 1L. It’s exactly the right combination of knowledge (they know that law reviews exist), over-eagerness (they actually want to read law review articles), and innocence (they think the right to privacy sprang fully-formed out of just a few cases). But why ask that on Yahoo! Answers? Even during those first few weeks when the 1Ls are still afraid of professors they should have 2L and 3L students to ask. The “Career Services” offices are always gung-ho about setting up “student mentors” for just this sort of 1L gunner. Even the most naive 1L should know better than to use Yahoo! Answers for a research resource.

I struggled with this for a few more minutes when everything suddenly became clear…

Kids, if you’re a 1L and either you or your classmates are looking up legal advice on Yahoo! Answers then congratulations, you’re going into massive debt for a degree from a Third Tier Toilet.

Monday, October 3, 2011

Another year of law school is upon me and, amid the usual musings about what my school was thinking when it decided to start a month later than seemingly every other law school in the country, my freshly-minted status as a 2L gives me the privilege of an excuse for chuckling at the incoming 1Ls who are currently bumbling around the law school like so many moths trapped in a recessed lighting fixture. As a worldly 2L with immeasurably-valuable experience a huge ego, I feel that it’s my duty to force some realism on these poor, over-eager 1L blighters. So here you go, 1Ls, this is what they didn’t tell you during your two-week orientation.

(1) That kid in the Three Wolf Moon T-shirt is going to get the highest grade in the class. The guy in the back of the class who only asks inane questions that annoy everyone will get the second-highest grade. The people to whom everyone goes for help understanding the subject and who can make theories understandable to laymen will be sitting in the fat B+/A- section of the bell curve.

(1)(a) Law school exams test your ability to take law school exams, not your understanding of useful legal concepts.

(2) You will do more work in your first quarter/semester of Legal Writing course than you do the entire year for every other course combined. You will also receive fewer credits for your Legal Writing course than for any other class.

(3) That A you get in ConLaw/CrimLaw/Contracts/Torts/&c from heavy study and quiet, rapt attention in class will feel great. Until you realize that the professor doesn’t remember you at all when you try to get a recommendation next quarter/semester. The guy who asked question after question and engaged the professor in active debate but got a B+ on the exam, however, will not only be remembered, but the recommendation he receives will be positively glowing. One of the dirty little secrets of law school is that the ability to do well on an exam and the ability to understand and apply the material are two very different things.

(3)(a) This doesn’t change the fact that your 1L grades will be the 800 pound gorilla when you’re applying for a place on your school’s journal and especially when you’re applying for jobs during OCI (On Campus Interview) season.

(4) You absolutely can have a life while you’re in law school.

(4)(a) It just has to revolve largely around law school. When you’re sitting in class, look to your left, then look to your right. These people now represent at least 95% of your friends (at least, the friends you’ll have time to interact with in person). During the first couple of weeks, or even months, you may think you’ve escaped this one. You haven’t. It’s only a matter of time before “The Law” starts taking over your brain. Sooner or later you will be watching a show on TV and you’ll start complaining about an element of law that they got horribly wrong. Or you’ll hear a friend mention a common misconception about a legal theory and you’ll read him the riot act for it. The change will come and, in time, you’ll start to believe that the only people who really understand you anymore are your fellow students.

(4)(a)(1) The only people who understand you will be your fellow students. Law school is a huge time sink and you’ll find that even when you’re not in class, it will creep into your thoughts. You’ll make parody songs expressing your frustration with the legal memo you’re writing. You’ll make jokes that have punchlines containing the phrase “strict scrutiny.” No matter how much you try to avoid it, you will incorporate law within the rest of your life. That’s not helpful when communicating with normal people.

(5) By the time Spring comes around, you’re going to start responding to things like a lawyer. As one of my professors once commented on a judicial decision, “the human response is, ‘what the hell were they thinking’ but the lawyer’s response is, ‘that’s a fascinating question.'” At the very least, you’ll understand why the ultimate verdict in the Casey Anthony trial was, legally speaking, most likely correct. This will not make you popular.

That’s about all I can think of off the top of my head. Congratulations on your decision to study law. Have fun. I hope you really like your school’s law library; you’ll be spending most of the next three years of your life there.

Friday, July 30, 2010

I wish I could say that I’d been following Ward v. Wilbanks as a result of a watchful eye on interesting cases, but I have to admit that it took a friend’s comments on the Fox News coverage to bring the case to my attention (despite what some of you may think given my political leanings, I have no love of Fox’s often-skewed reporting). For those of you who don’t care to read through the judgement and who (correctly) don’t fully trust Fox’s article, I’ll summarize the case briefly.

Julea Ward was enrolled as a graduate student in Eastern Michigan University’s Counseling program. As part of state accreditation requirements, the curriculum for this program includes instruction on, and mandates adherence to, the ACA Code of Ethics. Students failing to follow the American Counseling Association’s code are subject to disciplinary action, up to and including the student’s removal from the program. ACA standards as well as state accreditation standards further specify that students will be required to engage in a Practicum during which time they will apply their classroom knowledge by engaging in actual counseling sessions, albeit with oversight from a professional in the field or faculty members themselves.

Ms. Ward excelled in the classroom portion of the program and despite taking numerous positions on homosexuality, both in written work and during in-class discussions, that were substantially contrary to those of her professors and fellow students, continued to receive high marks in all classroom courses. There is no evidence to suggest that Ms. Ward’s views caused any undue hardship for her during the two and a half years she spent in the classroom portion of the program, indeed the consistent high marks awarded to Ms. Ward provide strong evidence that, despite disagreements on the issue of homosexuality, the faculty were successful in their efforts to judge Ms. Ward’s work on its own merits rather than on whether they personally agreed with the positions it often described.

After a highly successful completion of the classroom portion of the program, Ms. Ward entered the Practicum in early 2009 with no initial indications of potential difficulty. During the course of the Practicum, however, Ms. Ward was asked to counsel a student who was seeking help with depression. Upon learning that this student had previously sought counseling about a homosexual relationship, Ms. Ward asked her supervisor (a counselor under whose license Ms. Ward was practicing) if the student should be referred to another counselor due to Ms. Ward’s inability to “affirm” the client’s homosexual behavior even though said behavior was not the reason for the counseling session. Ms. Ward’s supervisor agreed to re-schedule the student with a different counselor.

Ms. Ward was later informed that she would not be assigned additional clients and that her supervisor was requesting an informal review (a non-disciplinary process that includes a student, his or her supervisor, and the student’s faculty advisor) to discuss whether Ms. Ward’s refusal to counsel a homosexual even about issues unrelated to homosexuality represented a breach of the ACA guidelines. It should be noted that these guidelines are given prominence in classroom learning and it is not possible that someone with Ms. Ward’s academic record could have been unfamiliar with them. The purpose of this review was to remind Ms. Ward of these guidelines (which state, in part, that, “discrimination based on . . . sexual orientation” is prohibited) and to discuss the fact that a counselor has an obligation to provide counseling based on the client’s values, not the counselor’s values per ACA guidelines.

After the review, Ms. Ward was presented with three options: (1) complete a “remediation program”; (2) voluntarily leave the program; or (3) request a formal hearing. Participation in the remediation program required that Ms. Ward recognize, “that she needed to make some changes.” (Judgement, page 4) The goal of the remediation program was to help Ms. Ward successfully find ways to counsel homosexuals on issues unrelated to their homosexuality. Ms. Ward chose to request a formal hearing instead.

The formal hearing (which was presided over by a much larger panel than the informal review) resulted in a unanimous decision that ACA guidelines had, in fact, been violated and that, as a result, Ms. Ward was to be dismissed from the program.

That’s the background.

Much has been made about Judge Steeh’s judgement in favor of Eastern Michigan University (EMU), with one news outlet (I’m looking at you Fox) claiming that, as a result of the ruling, “schools can expel students . . . who believe homosexuality is morally wrong.” This is a ridiculous reading of Steeh’s judgement and it makes me question whether Mr. Starnes (the author of the Fox article) even bothered to read the judgement. This misrepresentation is not unique to Fox, however, as everyone’s favorite “McPaper”, USA Today, is getting in on the unfounded sensationalism by claiming that the judgement requires that, “student counselors must ‘affirm’ gay clients.”

The reality of the situation is that Justice Steeh’s judgement is, in fact, quite narrow and is unlikely to set any significant new precedent. The Judgement, when distilled to its essence, essentially reiterates the already established legal fact that a school has the right to enforce a program’s guidelines when such guidelines have clear secular purposes. In EMU’s case, the guidelines in question were those of the world’s largest association of professional counselors; it is not at all unreasonable for the university to hold students in a particular program to the same standards as are prevalent within the professional world to which that program applies. Additionally, the school is required to adopt and enforce these guidelines in order to maintain its accreditation; a concern which is most certainly secular in nature as well as being religiously neutral.

My own commentary on the entire issue is simple. Ms. Ward knew the ACA guidelines and knew that her own views were in opposition to those guidelines. As such, she had three main options: (1) seek attendance at a school which adopts and enforces ACA guidelines and, in so doing, accept that she would need to counsel homosexual persons without bias despite her own views; (2) seek attendance at a school which did not adopt ACA guidelines and, in doing so, accept that such a school would not be accredited; or (3) seek attendance at a school which adopts ACA guidelines but dispute the idea that said guidelines require her to counsel homosexual persons.

Ms. Ward chose the third option and the outcome should have been predictable. Indeed, the outcome is so predictable that one must wonder if this were not Ms. Ward’s intent from the very beginning. The complaint filed by Ms. Ward’s lawyers seems to support this reading of the situation as my first impression upon reading Ms. Ward’s complaint was that her lawyers chose to throw as much at the wall as possible and simply hope that something stuck.

It is disheartening to see the press making so much out of what is, in reality, an unsurprising judgement.

Sunday, March 28, 2010

Now that the important work of passing the health care bill has been done, we can turn to the trivial task of finding out what the bill actually covers. It seems that there are a few surprises…

Under the new law, insurance companies still would be able to refuse new coverage to children because of a pre-existing medical problem, said Karen Lightfoot, spokeswoman for the House Energy and Commerce Committee, one of the main congressional panels that wrote the bill Obama signed into law Tuesday.

Sunday, March 28, 2010

To paraphrase a line I picked up from another blogger, “It’s no major feat to ignore reality and pretend that laws can be erected to change any situation,” and we’re seeing more of this insipid parlor trick in the recent wailing and gnashing of teeth by House Democrats (led by the ever-delusional Henry Waxman) in response to Wall Street’s recent multi-billion dollar writedowns. Waxman and his cronies are apparently aghast that Wall Street has the incredible temerity to follow SEC regulations which require that all companies immediately restate earnings to reflect changes to the present value of long-term liabilities, which includes tax liabilities.

I guess accounting irregularities are OK as long as those irregularities hide the government’s lies.

Sunday, March 28, 2010

As my own application for admission to law school has already been accepted (Go Huskies!), I was able to read Roger Clegg’s recent article on whether or not it is wise to include a “Diversity Index” in law school rankings with less bias than I might have had a few mere weeks ago. Even though agreement with his argument no longer technically furthers my own interests, I can only agree with his evaluation and applaud his conclusions. While diversity of opinion may indeed be a noble goal, mere diversity of pigmentation cannot achieve it.

1. Once reform is fully implemented, over 95% of Americans will have health insurance coverage, including 32 million who are currently uninsured.

The reality:

Currently, only 15% of the US population is uninsured (46 million uninsured individuals per the 2007 Census Bureau data and a current US population of 307 million). If we only count persons who are legal US Citizens (this includes both native-born citizens and naturalized citizens), then only 12% are uninsured (80% of uninsured are US citizens, so 80% multiplied by 15% gives us 12%). This paints a very different picture as we begin to see that this bill will spend trillions of dollars over the next decade but will only improve the number of insured by 7% to 10%. That’s not a lot of juice for the amount of squeezing being done. In addition, we must also account for the fact that large numbers of currently non-covered individuals are either children who would be covered under their parents’ existing insurance but whose parents have neglected to register them, or young professionals who choose to opt-out of employer-paid health care because they do not believe it is necessary to have coverage. The net result when such factors are accounted for is that the bill exists to benefit only about 4% to 8% of the total population.

The claim:

2. Health insurance companies will no longer be allowed to deny people coverage because of preexisting conditions—or to drop coverage when people become sick.

The reality:

By eliminating the right of a business to deny coverage to people who are guaranteed to cost more than they pay in premiums the bill effectively mandates that prices increase across the board. Let’s use a perfect analogy to illustrate why this is so. Imagine if the exact same thing were required for car insurance companies. In such a world, you could buy a wrecked car and then file a claim to make the insurance company pay for repairs despite the damage being preexisting. Obviously premiums would increase significantly. Perhaps you think that this simply means that insurance for persons who require more care will only be more expensive to those particular people, but this is not so as the bill regulates an insurance company’s ability to recoup costs from clients who are very expensive to insure. The only way for insurance companies to guard against such losses will be to increase everyone’s premium, regardless of your risk level.

The claim:

3. Just like members of Congress, individuals and small businesses who can’t afford to purchase insurance on their own will be able to pool together and choose from a variety of competing plans with lower premiums.

The reality:

This is already a reality. In fact, the company for which I currently work is part of such a pool. To claim that this is a benefit of the Obama bill is disingenuous at best and downright deceitful at worst. MoveOn.org is simply exploiting voter ignorance for political gain. They know that most Americans are not sufficiently familiar with current regulations to understand that such pools of small businesses already exist and so they are dishonestly touting such pools as benefits of the Obama bill.

The claim:

4. Reform will cut the federal budget deficit by $138 billion over the next ten years, and a whopping $1.2 trillion in the following ten years.

The reality:

Once again we are into territory that is either disingenuous or deliberately deceitful. As with claim #3, MoveOn.org is exploiting voter ignorance for their own political ends. On the surface, this looks good, until one realizes that “deficit” is not synonymous with “debt”. The federal budget deficit is a yearly number that represents how much money is being borrowed to run the government for that particular year. The federal debt is the total amount of money that the government still needs to pay back from all previous years combined. It is possible to reduce the deficit without there being any corresponding reduction in total debt at all, and this is all that is actually being claimed. In fact, because there are no claims that the deficit will be eliminated, MoveOn.org is effectively admitting that overall debt will continue to grow even after the supposed $1.2 trillion in deficit reduction. There is also the deliberately misleading wording where it appears at first glace that the $1.2 trillion in deficit reduction will occur in 10 years, even though the reality is that this deficit reduction comes in the 10 years after the first ten years where the reduction is only $138 billion. This means that the supposed $1.2 trillion in deficit reduction occurs in 20 years, not 10. Long story short, this claim actually admits that the Obama bill will spend more money than it saves over the next 20 years.

The claim:

5. Health care will be more affordable for families and small businesses thanks to new tax credits, subsidies, and other assistance—paid for largely by taxing insurance companies, drug companies, and the very wealthiest Americans.

The reality:

When business are taxed, they inevitably pass those costs on to the consumers. Any benefit in tax credits to consumers will be counterbalanced by increases in premiums, especially given that claim number 2 essentially guarantees that premiums will increase across the board. This also contains the hidden premise that it is acceptable to levy large taxes on “the very wealthiest Americans” even though such taxes amount to punishment for success. This claim is nothing more than an appeal to those who are bitter over the success of others and who wish to lay claim to the fruits of other people’s success.

The claim:

6. Seniors on Medicare will pay less for their prescription drugs because the legislation closes the “donut hole” gap in existing coverage.

The reality:

This claim assumes that there are no other variables, such as increases in the costs of drugs due to pharmaceutical companies needing to recoup the punitive taxes that this bill would impose. Additionally, the Medicare Part D coverage gap (the “donut hole”) is a legitimate and intended design feature of Medicare Part D coverage that was designed to discourage the tendency of some physicians to prescribe drugs with less discrimination than might otherwise occur. The maximum cost that a senior may incur while in this gap is $4,250.25, or about $360/month. Less than a car payment for many people. Additionally, there are already programs for low-income seniors so that they are not affected by the Part D coverage gap.

The claim:

7. By reducing health care costs for employers, reform will create or save more than 2.5 million jobs over the next decade.

The reality:

Interestingly, this is the only claim for which MoveOn.org has no source listed, which suggests that it’s, well, just a wee bit made-up. It is also a claim that economists understand is effectively impossible to track or measure in any real-world scenario. The fact that there is absolutely no way to ever verify or disprove this claim makes it fantastically useful propaganda, but also makes it worthless as a legitimate statement of the benefits of the Obama bill.

The claim:

8. Medicaid will be expanded to offer health insurance coverage to an additional 16 million low-income people.

The reality:

Admitting that a mismanaged program which is swimming in red ink will be expanded is not the best way to sell the Obama bill.

The claim:

9. Instead of losing coverage after they leave home or graduate from college, young adults will be able to remain on their families’ insurance plans until age 26.

The reality:

Many, perhaps even most, plans currently have similar allowances. For example, I could have stayed on my parents’ insurance until I was 24, a full two years _after_ graduating from college and being hired into my first job with benefits. Had I remained in school, I would have been able to stay on my parents’ insurance even longer. MoveOn.org is yet again taking advantage of voter ignorance for their own political gain. MoveOn.org is fully expecting that most people will lack the familiarity with their current insurance plans to know that this sort of feature is already offered on many plans. As I said before when responding to claim number 3, to claim that this is a benefit of the Obama bill is disingenuous at best and downright deceitful at worst.

The claim:

10. Community health centers would receive an additional $11 billion, doubling the number of patients who can be treated regardless of their insurance or ability to pay.

The reality:

Increasing funds to community health centers is a great thing in theory, but it doesn’t change the fact that we cannot afford the current level of spending, much less a doubling of it.

So, there you have it. 10 things that every American should know about health care reform and the actual truth behind each one.

Tuesday, January 19, 2010

This is huge. I don’t quite know what the fallout from this will be, but it’s a rare event for Mass. voters to elect a Rublican and the race wasn’t really even that close. Consider too that the seat in question was Ted Kennedy’s. Perhaps the bloom is off the rose.

Sunday, January 17, 2010

The US Supreme Court has agreed to hear arguments in the case of Doe No. 1, et al., v. Reed, et al. In what is something of a rare position for me, I come into this hoping that the Court will affirm the Ninth Circuit’s decision. While I am often not a particular fan of the Ninth Circuit, and while I tend to agree with Mr. Volokh’s opinion that the Ninth Circuit made the right decision for not entirely the right reasons, in this particular case I can see legitimate rationale behind the decision. The Ninth Circuit seems to believe that the anonymity of petition signers is at least potentially mandated by the First Amendment in certain circumstances but in the case of the WA State petition the state has sufficiently compelling reasons to limit the supposed First Amendment right to anonymity.

My own interpretation mirrors Mr. Volokh’s; I do not believe that there is any situation in which the First Amendment protects the anonymity of petition signers. It is my hope that the Supreme Court with affirm the Ninth Circuit’s decision with clarification on the reasoning. Even if there is no clarification of reasoning, however, a simple affirmation would still be a defensible position in my mind.